In This Issue

• When Johnny Comes Marching Home – Remember USERRA
• Rehiring Former Employees? Watch for FMLA Issues!
• Industrial Commission Is Enforcing Pre-hearing Filing Requirements
• Is Ohio Workers' Comp Still a "No Fault System"?

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When Johnny Comes Marching Home – Remember USERRA

By Lawrence F. Feheley

More National Guard and Reserve soldiers have been activated since 9/11 than at any time since World War II. President Bush recently announced the deployment of additional troops to Iraq. Increasing numbers of the armed forces have been, and will continue to be, returning home and to work. This is where USERRA – the federal Uniformed Services Employment and Reemployment Rights Act – comes into play. Here is a general overview of the federal law:

1. Am I entitled to any advance notice when an employee leaves?

   Yes. The law requires the employee to provide "advance notice" – which can be either verbal or written – of his or her military service. The Regulations for the law "recommend" that at least thirty days advance notice be given by the employee, if feasible.

2. What happens while the employee is gone?

   While an employee is on leave for military service:

   1. The employee should be treated the same as those on other types of leave for non-seniority benefits (holiday pay, vacation accrual, insurance benefits, etc. should be provided the same as other leaves);

   2. Employees on military leave may, but do not have to, be paid. Employees may use any accrued paid time while on military leave, but cannot be forced to do so;

   3. Employees on military leave can continue health insurance coverage for (i) twenty-four months, or (ii) the period of their service, whichever is less. If the employee is gone for more than thirty days, the employer can require that they pay 102% of the premiums in order to maintain the coverage (i.e., like COBRA payments).

3. What about reemployment when the leave ends?

   Employees can perform military service for up to five years and retain reemployment rights to their job. The law provides time periods within which employees must report back to work, which vary according to the amount of time they are absent (under 31 days, 31-181 days, over 181 days).

   The law requires that returning service members must be "promptly" reemployed – under the Regulations, this is "as soon as practicable," but no longer than two weeks after the employee applies for reemployment. Once reemployed:

   1. The law adopts an "escalator principle." This requires that the employee be placed in the position, with the respective pay, seniority, and benefits, that the employee would occupy had they not left for military service. Special provisions exist in the Regulations for the reemployment of employees who are disabled.

   2. The employee is entitled to all seniority-related rights that they had when they left for their service, and that they would have if they had remained in their job during the period of their absence. For example, time while the employee is absent on military leave will count toward meeting the 1,250 hour requirement for FMLA eligibility.

   3. Returning employees must also have their retirement benefits calculated as if they had not been absent from work.

4. What happens if problems arise?

   Employees who return from military service can only be discharged for "cause." Employees returning after less than 180 days' service can be discharged within 180 days only for cause; employees returning after more than 180 days' service can only be discharged within one year only for cause. "Cause" is misconduct for which the employee had actual or implied notice that discharge would result, or other reasons if the employer can prove the discharge would have occurred irrespective of the military leave.

   The Regulations provide technical assistance for USERRA compliance. (They can be found at www.dol.gov/vets/regs/final/2005023961.) Penalties for USERRA violations can be costly. As military veterans leave and return for work, be sure that you comply with the law's requirements.

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Rehiring Former Employees? Watch for FMLA Issues!

By Brendan P. Feheley

The Family Medical Leave Act (FMLA) has been a constant source of headaches for both judges and employers alike. Since its inception in 1993, the provisions of the FMLA have been difficult, if not impossible, to administer efficiently and effectively. The determination of when an employee becomes eligible for FMLA protection, however, was one area employers thought was relatively simple to understand. The Act states that for an employee to be an eligible employee under the FMLA, the employee must have worked for the employer for 12 months and have worked at least 1,250 hours in the twelve month period preceding the need for leave. Seems simple enough right?

Not so fast, my friend. A recent First Circuit Court of Appeals decision held that an employee who had worked with the employer previously, terminated his employment and later was rehired was able to count his previous employment toward the 12 month employment minimum, even though there was a five year break between the periods of employment.

The case Rucker v. Lee Holding Co., involved an employee who worked for an auto dealership for five years. The employee then left the dealership and found other employment, which he kept for a five year period. The employee then returned to the auto dealership and 7 and ½ months into his employment, injured his back. The employee took medical leave at various times over the next month and a half. After the employee had been absent from work 13 days, he was terminated. At the time of his termination, the employee had worked the requisite 1,250 hours but had only been employed for 7 and ½ months (not counting the previous employment).

The employee filed suit claiming that he was fired while on medical leave in violation of the FMLA. The district court granted the employer's motion to dismiss holding that his prior service with the dealership did not count toward the twelve month requirement and that because he was not an eligible employee for FMLA purposes (due to the fact he did not meet the minimum twelve month requirement), the leave was not covered by the FMLA. On appeal, the First Circuit reversed. Relying on the opinion of the Department of Labor, the First Circuit held that prior employment with the same employer can count toward the minimum twelve months of total employment required for eligibility under the Act.

The Court in Rucker did not decide whether a rehired employee's previous employment must be counted in all cases or, if after a break in service of some length the previous employment is no longer required to be counted in determining the employee's eligibility.

What Does This Mean?

The opinion in Rucker is the first on the issue of the FMLA's minimum twelve month eligibility requirement. Thankfully, the opinion only applies to a small class of employees, those that have been employed previously with the same employer and have worked 1,250 hours but have not been employed for twelve consecutive months at the time of their need for leave.

However, as the decision in Rucker demonstrates, the impact on that small class of employees can be quite large. For the time being, the best path to follow is to consider an employee eligible for FMLA purposes when the employee has worked 1,250 hours in the previous twelve month period and has been employed with the company for at least twelve months regardless of any break in service the employee may have. Any time your company intends to consider leave as not being covered under the FMLA on the grounds the employee is not eligible because they have not worked a minimum twelve months, you need to be sure the employee hasn't been previously employed with the company. Also, for any employers with seasonal employees, you need to keep an eye on an employee's total time of employment when determining FMLA eligibility (assuming the employee meets the 1,250 hour threshold).

The Rucker decision adds yet another hurdle into the obstacle course that is the FMLA, and while HR professionals will undoubtedly be inconvenienced by the increased monitoring and digging through old employment records, on balance, the cost of ignoring the decision could be much greater than the inconvenience, especially for those who would rather not become close friends with their labor and employment attorney.

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Industrial Commission Is Enforcing Pre-hearing Filing Requirements

By Patsy A. Thomas

Due to heavy lobbying by claimants' counsel, the Commission has stepped up enforcement of Administrative Code 4121-3-13(D) and (E). Those Rules require self-insuring employers to file the following information with the Commission and the injured worker prior to a hearing:

1. medical reports or consultations from any physicians;
2. FROI (claim application) or equivalent;
3. statement listing the specifically allowed conditions, if any;
4. Full Weekly Wage (FWW) and Average Weekly Wage (AWW);
5. last payment date of compensation or medical bill where the statute of limitations is an issue; and,
6. date of last compensation payment where the issue is entitlement to compensation.

Note that the Rules arguably require the filing of information even if it is not relevant to the issue(s) going to hearing. For example, the self-insured employer may have to submit the AWW and FWW calculations even if the hearing involves allowance of a medical-only claim.

Administrative Code 4121-3-13 has been in effect since April 1, 2004; however, the Commission has just recently begun making self-insuring employers comply with its requirements. To ensure that all self-insuring employers are aware of this Rule, the Commission has began printing the requirements on all hearing notices. Noncompliance with this Rule could result in a self-insured complaint being filed against the employer.

If you have any questions regarding compliance, please feel free to contact our offices.

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Is Ohio Workers' Comp Still a "No Fault System"?

By David M. McCarty

The Ohio Supreme Court recently decided a case that may call into question whether the notion of "fault" impacts an employee's entitlement to workers' compensation benefits.

Sixteen year old David Gross began working for a Kentucky Fried Chicken franchisee in September 2003. He was given an Employee Handbook during orientation. One of the safety rules in the Handbook advised that employees "never boil water in a cooker to clean it." The Handbook deemed this a "critical" violation that could result in immediate termination. A warning label on a pressure cooker further reminded employees that they should "not close the lid with water or cleaning agents in the cook pot." Despite these warnings, Gross was confronted by his supervisor when, a short time later, he was observed putting water into the cooker to clean it.

On November 26, 2003, a co-worker saw Gross again putting water into the cooker. The co-worker immediately told him to stop and clean it the proper way. Moments later another co-worker warned Gross not to open the cooker's lid. Gross ignored both men and opened the lid, severely burning himself and two co-workers. His workers' compensation claim was allowed and he began collecting temporary total disability compensation (TTD) benefits. About three months later, the employer terminated Gross' employment after completing its investigation.

The employer then filed a motion with the Industrial Commission requesting termination of TTD. The Commission agreed with the employer, finding that Gross had "voluntarily abandoned his employment" when he was terminated for violating written work policies (pursuant to the Louisiana-Pacific case). Gross eventually appealed the matter to the Ohio Supreme Court.

The Court upheld the denial of TTD. It rejected Gross' arguments that he was actually discharged because he had been injured in the workplace. The Court further rejected his argument, pursuant to the Coolidge decision, that he could not be terminated since he was already receiving TTD. It also reversed the determination made by the Court of Appeals that "a claimant can abandon a former position or remove himself or herself from the work force only if he or she has the physical capacity for that employment at the time of the abandonment or removal." Here, Gross' disability and the misconduct that precipitated his termination occurred simultaneously. The date of disability onset preceded the date of termination only because the employer conducted an investigation first rather than firing him on the spot which, arguably, it could have done. The Supreme Court held denial of TTD is appropriate because Gross willfully ignored repeated warnings not to engage in the prohibited behavior.

It remains to be seen whether this decision will have broad implications and enable employers to avoid payment of some benefits when wrongdoing contributes to the injury. It is important to note several facts in that regard. First, the Gross decision did not deny the claimant all workers' compensation benefits – his medical bills were still covered under the claim. Also, the decision denied him TTD only until he returns to work and then has to go back off work because of a flare-up of the injury (pursuant to the McCoy v. Dedicated Transport case). Second, Industrial Commission hearing officers and the courts may act to limit the holding in the Gross case to its particular facts and refrain from finding voluntary abandonment unless the misconduct is deemed to be willful and in the face of repeated warnings about that misconduct. One hopes that the Court's rejection of Gross' invocation of the Coolidge decision signals a limitation of that case to its facts.

Finally, despite howls of protest from the claimants' bar and their attempts to mischaracterize the Gross case, we believe the Supreme Court has not improperly introduced "fault" into the workers' comp system. Rather, it has extended "voluntary abandonment" principles to the particular set of facts at issue in the case.

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